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TMI Blog2014 (11) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 2011 to March 2012 were adjudicated. Revenue has also filed two appeals one against the order of the Commissioner (Appeals) wherein the appeal filed by the assessee was allowed and one against the order of the adjudicating authority. 2. Brief facts of the case are that the assessee is engaged in the activity of manufacturing of pharmaceuticals products and their manufacturing units located at Patalganga in Maharashtra, Selaqui and Langa Road in Uttaranchal and Paonta Sahib in Himachal Pradesh and distributes the same to Nerul, Pawane and Patalganga factories at Maharashtra. The appellant is having their Head Office at Andheri (W), Mumbai. The manufacturing units located at Uttaranchal and Himachal Pradesh are not paying Central Excise d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner (Appeals) the contention is that as per Rule 3 of the Cenvat Credit Rules, 2004 the manufacturer and producer of the final product is entitled to take CENVAT Credit of various specified duties paid on inputs or capital goods or any input services. As per Rule 9(5) and (6) of Cenvat Credit Rules, 2004, the burden of proving that the CENVAT Credit is in respect of input/capital goods and input services lies upon the manufacturer or producer or provider or the output service taking such credit. As in this case the admissibility of CENVAT Credit is on the assessee therefore, whatever they have taken is credit, it is the duty of the assessee to prove that. Therefore, the learned A.R. prays that the impugned order is required to be set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Rule 7 of the Cenvat Credit Rules, 2004 as it existed at the relevant time. 5.1 He further submits that the learned Commissioner without his jurisdiction reallocated the entire CENVAT Credit when the show-cause notice alleged only for distribution under Rule 6(5) of Cenvat Credit Rules, 2004. Therefore, the impugned order is required to be set aside. In support of his contentions, the learned Counsel relies on the decision in the case of CCE v. Ballarpur Industries Ltd. - 2007 (215) ELT 489 (SC) 5.2 He further submits that the learned Commissioner has no jurisdiction over the assessee's factory availing credit can challenge the correctness of credit distributed on by the ISD located in a different jurisdiction. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol India Ltd. (supra) and MDS Switchgear Ltd. (supra). The issue was examined by this Tribunal where the facts were that the CENVAT Credit taken have no nexus to the manufacturer and in some cases same have been availed beyond the place of removal. In fact, in this case the issue is that whether the assessee is entitled to take CENVAT Credit as per Rule 6(5) of Cenvat Credit Rules, 2004 or not. Further, in the case of MDS Switchgear Ltd. the issue before the Hon'ble Apex Court was that entitlement of duty paid by the supplier (manufacturer). That is not the case before us. In fact, the issue in this case is that whether the assessee is entitled to take CENVAT credit as per Rule 6(5) of CENVAT Credit Rules, 2004 for specified service as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee is not entitled to take CENVAT credit attributable to the activity of trading as during the relevant time, the trading activity was neither excisable nor an exempted service at all. Therefore, the quantification of inadmissible CENVAT credit is required to be done at the end of adjudicating authority to disallow the CENVAT credit attributable to trading activity. 8.2 The next issue is that whether the learned Commissioner has jurisdiction to reallocate the CENVAT credit or not. We have gone through the show-cause notice wherein the allegation is that the assessee is not entitled to take CENVAT credit referred in under Rule 6 (5) of CENVAT Credit Rules, 2004 as the same are not covered in Rule 7. Therefore we hold that the learned Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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